What’s New?

Some Non-COVID Quick Takes on California Employment Law

by D. Gregory Valenza | |

Greetings. Here are a few employment law developments  that California employers and lawyers may find of interest –

New DFEH Regulations Effective 7/1/20

The Department of Fair Employment and Housing’s regulations will be amended as of 7/1.  The amendments cover hiring discrimination based on age and religion.  Here is a marked-up version of the new regulations so you can see the changes.

Many of the regulations will be familiar.  But some merit attention.  For example:

  • Application forms that ask for work days availability without adequate disclaimers may be discrimination based on religion or disability (?).
  • Electronic application processing software that takes into account an applicant’s scheduling information may still be discriminatory based on “adverse impact.”
  • Layoff decisions based on salary rate are age discrimination (higher wage rate usually correlates with age).  Even if the employer shows the decisions were job-related and consistent with business necessity, the employee may win if there were alternatives to cut payroll. (Such as cutting wage rates instead of firing high-wage earners).
  • Examples of how recruiting information or advertisements can subtly indicate a preference for younger workers.

Class Action “Declarations.” 

A 2-1 decision of the California Court of Appeal may change the way class action motions are handled.  Basically, the majority in Barriga v. 99 Cents Only Stores (opinion here)  decided that the trial judge did not spend enough time scrutinizing whether the employer’s declarations in opposition to class certification (statements by employees under penalty of perjury) were “coerced” or fraudulent.  (These declarations are needed to help the employe show the court that the class certification standards are not met because the potential class members do not share a sufficient community of interest.) As a result, the majority reversed the trial court’s denial of class certification and sent the case back to the trial court for re-evaluation.

Here’s the thing though – the trial court already ruled that the class action couldn’t be certified.  The majority did not rule on whether that ruling was correct.  So, the only way the plaintiff can win is if the trial court disregards 177 declarations.

The opinion provides a lot of information as to how counsel must proceed to obtain declarations in class actions, and what will result in a finding that the communication with employees was improper.  The trial judge must take an active role in scrutinizing the nature of the contact with employees.  So, this will affect what employers’ counsel must include in employee declarations to pass muster.   Depositions may be the way to go.

This case was decided 2-1. If you are a fan of annoyed and disgusted judges, read the dissent.

 “Qualified Individual with a Disability”

Only “qualified individuals” can sue under the Americans With Disabilities Act.  According to the ADA’s text, that means the individual can perform the essential job functions with or without reasonable accommodation.  But what if the employee lacks a fundamental qualification for the job?  And what if the employer finds out the employee lacked that fundamental qualification only after discharging the employee?

The Ninth Circuit said the employee’s case fails.  The EEOC has issued a regulation explaining that “qualified individual” requires a two-step analysis:

We first determine whether the individual satisfies the prerequisites of the job; more specifically, whether “the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires.” At step two, we determine whether, “with or without reasonable accommodation,” the individual is able to “perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).

In the case at issue, Anthony v. Trax Int’l, opinion here, the plaintiff did not have a bachelor’s degree that was required for the job she held. (She had lied on her application).  Now, in other contexts, “after acquired” evidence such as this is not a bar to a lawsuit.  But in the case of the ADA, the plaintiff has to prove that she is qualified to do the job.  Anthony could not do so because she wasn’t qualified to do the job.

An employer’s ignorance cannot create a credential where there is none. Here, Anthony lacked a bachelor’s degree at the time she was terminated regardless of whether TRAX was aware of this fact. * * *

* * *

Under the two-step qualified individual test promulgated by the EEOC and embedded in our precedent, “an individual who fails to satisfy the job prerequisites cannot be considered ‘qualified’ within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect.” Johnson, 666 F.3d at 567. Because Anthony did not have the requisite bachelor’s degree at the time she was terminated, she was not qualified within the meaning of the ADA, and TRAX had no obligation to engage in the interactive process.

More quick takes in a couple of days.


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